And so, with another year coming to a close, it is once again time for this Ontario employment lawyer to provide his picks for the Top Five Cases of Importance to Ontario Employment Law!

What it takes to make it to the top five

In 2014, I established some criteria for crafting a top five list. Those criteria are as follows:

First, the decision must have a considerable impact on Ontario law. Accordingly, even if the case is from the Supreme Court of Canada, if the decision primarily concerns the interpretation of extra-provincial legislation, then it does not make the list..

Second, the decision must have a considerable impact on employment law. I ditched labour decisions in 2017.

Finally, the decision should either do something new, or affirm first principles in a dramatic way.

Those that didn’t make the cut

This year, I highlight three cases as “interesting, but ultimately not important.”

The first such case is Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130 (original post: ONSC Judge Would Have Ordered at Least 36 Months Reasonable Notice – If Requested.) In this case, Justice DJ Gordon held that the appropriate notice period for a 62 year-old, 37 years tenured Senior Vice President, terminated without cause and left without any comparable employment opportunities was at least 36 months. While 36 months certainly seems like a high score, let’s see what happens on appeal.

The next “neat” but “not” case is Mohamed v. Information Systems Architects Inc., 2018 ONCA 428 (original post: Unfettered Right to Terminate Contract Must be Exercised in Good Faith: ONCA), in which the ONCA held at ¶18 that, “although the [contracting party] had a facially unfettered right to terminate the contract, it had an obligation to perform the contract in good faith and therefore to exercise its right to terminate the contract only in good faith.” As I think about this case further, the same simply sounds like what the Supreme Court said in Wallace.

Finally there is MacIvor v. Pitney Bowes, 2018 ONCA 381 (original post: Termination of Employment Does Not Terminate Ability to Apply for LTD Benefits), in which the ONCA held that an employee was entitled to make application for long-term disability benefits under his employer’s group policy of insurance five years after sustaining the injury, and more than two years after quitting the job to which the benefits were attached. This case actually came very close to making the top five. It was only beaten out because it is more of an insurance and discoverability case than a true employment case, but still, worth a read if for no other purpose than general interest.

Number five – Roskaft v. RONA Inc., 2018 ONSC 2934

Why it makes the list: I actually advocated for Roskaft as the employment law case of the year at the 38th Annual CCLA Civil Litigation Updated Conference. As such, I had to feature this case somewhere on this list. The reason why Roskaft is important is that it appears to have changed the way we approach the issue of frustration. In the paper that I presented at that conference, I wrote the following:

What is most interesting about this case is the fact that the court deemed the worker’s continued receipt of LTD benefits as essentially the “smoking gun” that there was no likelihood of the employee returning to work within a reasonable period of time. Indeed, one might say that the plaintiff’s continued receipt of LTD was evidence of the opposite.

Such position is perhaps at odds with the earlier finding of the Superior Court in Dragone v. Riva Plumbing Limited (2007) 61 CCEL (3d) 261… and others.

Roskaft thus stands as a marked departure from the earlier decisions on this issue. One queries whether the fact that the disability benefits were being provided by a third-party insurer played a role in Justice Pollak’s decision to allow the employer to terminate employment on the basis of frustration. My hypothesis is that it must have.

What is clear to me is that this decision has not gone unnoticed by employers. Shortly following the release of this decision, I saw a rash of terminations, ostensibly for frustration, in cases where employees were in receipt of long-term disability benefits. The prudence of those actions is yet to be seen pending a decision of the Court of Appeal in Roskaft.

I obviously affirm such comments here and they are, in fact, why I think this case deserves to make the list.

Number four – Decision No. 3096/17, 2018 ONWSIAT 1563

Why it makes the list: The issue of sexual assault and sexual harassment actually impact both the number four and three spots on this year’s list. In Decision No. 3096/17, the Workplace Safety and Insurance Appeals Tribunal, the “WSIAT”, to which one ‘appeals’ decisions of the Workplace Safety and Insurance Board (the “WSIB”), held that an employee cannot sue her employer if she is sexually assaulted at work by a co-worker and is eligible for the receipt of WSIB benefits.”

It is important to note that the WSIAT drew a distinction between the employer and the perpetrator, however: The plaintiff’s right to sue the alleged assailant, who was also a co-worker, is not removed by the Act because the alleged assailant has taken himself out of the course of employment through the deliberate act of committing a sexual assault, but the right of action against the employer is removed. Moreover, the Tribunal confirm that victims of such assaults at work are still entitled to claim benefits under the WSIA.

The case is an important reminder about venue selection in an already difficult area of law.

Number three – Watson v. The Governing Council of the Salvation Army of Canada, 2018 ONSC 1066

Why it makes the list: Watson was selected as the number one case of important to Ontario employment law at the 38th Annual CCLA Civil Litigation Updated Conference. But, as those voting were not all employment lawyers, and as I have complete control over this list, it only makes the number three spot here.

Watson is important because, somewhat like MacIvor v. Pitney Bowes, it is a case about “zombie” claims. In Watson, it was against Justice DJ Gordon who held that an employee may be able to sue her former supervisor for sexual harassment if she has signed a Full and Final Release in favour of her former employer many years before. Justice Gordon’s reasoning appeared to turn on the fact that, “while many of the alleged events occurred at the place of employment and, perhaps, because of the employment, sexual harassment, intimidation and other improper conduct are not connected to employment. They are clearly separate matters.” (¶22)

The Watson is going to keep a lot of people awake at night. Unfortunately, some of those people will be lawyers who drafted releases which may not withstand the test of time. But the decision may also now keep others, who otherwise might have thought that they ‘got away with it’ awake. Less sympathy is afforded there.

Number two – Amberber v. IBM Canada Ltd., 2018 ONCA 571

Why it makes the list: Amberber is this year’s entry for the “what does it take to make a contractual termination clause legal” question. After having time to really think about this case, what I appreciate about Amberber is that it helps me better understand what the ONCA was saying in Wood, which was last year’s undeniable number one case, about Roden.

What the Court of Appeal said in Amberber was really two things: (1) read the agreement / termination clause as a whole; and (2) don’t go inventing ambiguity where none exists. While Wood remains the go-to case for termination clause interpretation, Amberber dials things back, just a touch, and advises everyone to chill out a little and focus on the actual intention of the parties.

Number one – Wood v. CTS of Canada Co., 2018 ONCA 758

Why it makes the list: For the second year in a row, a case named “Wood” makes the top spot. This Wood takes the top spot not for the reason about which I blogged, although that is also important, but rather because the decision is a textbook on how to execute a mass termination under the Employment Standards Act.

2018 has seen a lot of changes to the ESA. First, it was Bill 148, which came into effect at the start of the year. But, following the election of the Conservatives and the Ford government, much of Bill 148 was done away with in favour of Bill 47. Rarely do decisions concerning the implementation of the ESA reach Ontario’s top court, and 2018 just seems like the year to take a good, hard look at what that governing statute says – especially about mass terminations.

With no word of exaggeration, one can see the smokestacks of the Oshawa GM Car Assembly Plant from the kitchen window of my childhood home. And, while neither I nor my parents ever worked at the Motors, several members of my more extended family did. The announced closure of the plant therefore did not go unnoticed by me. Mass terminations have become an all-too-familiar problem. Ensuring that employees are given proper notice in such circumstances matters.

The ESA matters. Those who look to the ESA to provide them with their terms of employment, i.e. how much they earn (minimum wage), and how much they will receive if they are terminated (statutory termination and statutory severance) need to know that the law will provide them with certain dignities. While the courts cannot dictate what the ESA says, they can at least ensure, to the extent possible, that it is followed.

This Wood decision therefore takes the top spot for 2018.

Looking back to last year’s list

In my “looking ahead” section of last year’s post, I wrote the following:

Three things are going to dominate 2018: the legalization of cannabis; the continuation of the #MeToo Movement; and the US mid-term elections, which will serve as an ersatz referendum on both.

On the Ontario legal landscape, expect a lot of discussion around the legalization of cannabis. Cases such as TTC are going to be common among large employers, and discussions about the decisions in such cases are going to be common among smaller employers.

Someone in Ontario, whose name we all know, is going to lose his job over sexual harassment allegations – and it’s going to make headlines.

And behind the scenes, a lot of us are going to be spending a lot of time working our way through the legislative changes introduced via Bill 148.

Rarely do I nail the “looking ahead” section of this post. However, in 2017 I pretty much hit the mark. In her paper concerning the Watson decision, Cheryl Waram

I have one more takeaway for you to consider. From Ghomeshi to Weinstein, from #metoo to #timesup, the current social discourse is empowering victims of sexual harassment to speak up and seek justice however they can, while denouncing attempts to silence such complaints. There are good reasons for shining a bright light on workplace sexual harassment. Perhaps the Watson case boils down to a person who sought a forum in which to advance her complaint of sexual harassment, and a judge who was not prepared to silence that complaint. Litigation counsel are trained to anticipate that a decision-maker will lean towards an outcome that seems most “just,” even if a more technical approach would seem to favour a different outcome. Viewed in that light, the decision is not really surprising at all.

Sexual harassment and sexual assault remain pervasive themes of employment law in Ontario. Things may be changing, but change is slow.

Bill 148 has caused a discussion about workers’ rights in this province. And, while much of the protections afforded by Bill 148 will be gone as of the start of 2019, the discussions about what quality work should look like will not.

Looking ahead to 2019

My annual “Top Five” post concerns decisions that have had the greatest impact on the Ontario employment law landscape. My sense is that the focus of 2019 will be on legislative reforms. Already the Ford government has passed Bill 47. Very recently introduced Bill 66 seeks to further erode employees’ rights in favour of ostensible workplace competitiveness.

On the litigation front, I think we are going to see fewer decisions concerning the interpretation of termination clauses. I think most employment lawyers now have a pretty good sense of what will pass muster with the court and what will not. Where we do see decisions, I don’t expect the court to do anything truly novel.

May your 2019 be free from Labour Pains!

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Sean Bawden is a partner with the law firm of Kelly Santini LLP. He was called to the bar in 2008 and practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College. He is a trustee of the County of Carleton Law Association. He is also a four-time OSSC curling champion. His twitter handle is @SeanBawden.

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